Section 238 BNSS: Effect of errors (Formerly Section 215 CrPC)

Section 238 of Bharatiya Nagarik Suraksha Sanhita, 2023: Effect of errors

Official Bare Act Text

Override / Mandate Mens Rea (Intent) Actus Reus (Conduct) Punishment Limitation Monetary

No error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice.

Illustrations

(a) A is charged under section 180 of the Bharatiya Nyaya Sanhita, 2023, with "having been in possession of counterfeit coin, having known at the time when he became possessed thereof that such coin was counterfeit," the word "fraudulently" being omitted in the charge. Unless it appears that A was in fact misled by this omission, the error shall not be regarded as material.

(b) A is charged with cheating B, and the manner in which he cheated B is not set out in the charge or is set out incorrectly. A defends himself, calls witnesses and gives his own account of the transaction. The Court may infer from this that the omission to set out the manner of the cheating is not material.

(c) A is charged with cheating B, and the manner in which he cheated B is not set out in the charge. There were many transactions between A and B, and A had no means of knowing to which of them the charge referred, and offered no defence. The Court may infer from such facts that the omission to set out the manner of the cheating was, in the case, a material error.

(d) A is charged with the murder of Khoda Baksh on the 21st January, 2023. In fact, the murdered person's name was Haidar Baksh, and the date of the murder was the 20th January, 2023. A was never charged with any murder but one, and had heard the inquiry before the Magistrate, which referred exclusively to the case of Haidar Baksh. The Court may infer from these facts that A was not misled, and that the error in the charge was immaterial.

(e) A was charged with murdering Haidar Baksh on the 20th January, 2023, and Khoda Baksh (who tried to arrest him for that murder) on the 21st January, 2023. When charged for the murder of Haidar Baksh, he was tried for the murder of Khoda Baksh. The witnesses present in his defence were witnesses in the case of Haidar Baksh. The Court may infer from this that A was misled, and that the error was material.

Statutory Defined Terms in this Section: (Click any term for official legal definition)

Public Prosecutor Sec 2(1)(r)

Legal Commentary & Landmark Judgments: Section 238

Section 238 provides that no error in stating either the offence or the particulars required to be stated in the charge, and no omission to state the offence or those particulars, shall be regarded at any stage of the case as material, unless the accused was in fact misled by such error or omission, and it has occasioned a failure of justice (replacing Section 215 CrPC).

Error or Omission in Charge: Clerical error, incorrect date, misspelled name, or omission of section.
Prejudice Test: Error is immaterial UNLESS the accused was in fact misled and a failure of justice has been occasioned.
Substantive Justice Over Technicality: Prevents guilty offenders from securing technical acquittals based on clerical drafting errors.

Key Landmark Precedents:

Willie (William) Slaney v. State of M.P. AIR 1956 SC 116: The 5-Judge Constitution Bench settled that an error or omission in the charge is not fatal unless it has occasioned a failure of justice; the court must examine whether the accused was misled in their defence and whether a fair trial was denied.
Nasib Singh v. State of Punjab (2022) 2 SCC 89: The Supreme Court reaffirmed that procedural defects in framing charges do not invalidate convictions unless demonstrable prejudice is proved on record.
Kailash Gour v. State of Assam (2012) 2 SCC 34: Held that where the accused knew the prosecution case in full and cross-examined witnesses comprehensively, a minor omission in the charge caused no failure of justice.

Courtroom Practice & Strategic Litigation Guidance:

If seeking to overturn a conviction on an erroneous charge in appeal, you must demonstrate *actual prejudice*: Show from the cross-examination transcript that the accused was misled into presenting an irrelevant defense because the charge specified the wrong date or venue.